federal court

A federal district court judge in Manhattan today granted the government’s motion to dismiss a lawsuit that sought to challenge the constitutionality of cannabis’ prohibited status under federal law.

[2/27/18 update: Plaintiffs have stated their intent to appeal the court’s ruling.]

The 98-page complaint, filed in July 2017 by a legal team that includes New York attorney Michael Hiller, NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland, contended that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argued that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.” Lawyers for the Justice Department argued for a dismissal of the suit, arguing: “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

Presiding Judge Alvin K. Hellerstein sided with the federal government, opining in a 20-page ruling: “No such fundamental right (to possess or use cannabis) exists. Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana.” The judge further ruled that plaintiffs had not yet exhausted all of the potential administrative remedies available to them — such as filing an administrative petition to reschedule cannabis with the US Drug Enforcement Administration — and therefore, it was inappropriate for the court to intervene. “There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind,” he opined. “Judicial economy is not served through a collateral proceeding of this kind that seeks to undercut the regulatory machinery on the Executive Branch and the process of judicial review in the Court of Appeals.”

Judge Hellerstein also rejected plaintiffs’ claim that the federal law is unconstitutional because “it was passed with racial animus.” He held that plaintiffs lacked the standing to argue such a claim because they “have failed to demonstrate that a favorable decision is likely to redress plaintiffs’ alleged injuries,” such as a dismissal of their past criminal convictions.

With regard to the question of whether the plaintiffs legitimately benefited from cannabis as a medicinal agent, the judge argued that the merits of this claim was beyond the scope of the court. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives,” he wrote. “I highlight plaintiffs’ experience to emphasize that this decision should not be understood as a factual finding that marijuana lacks any medical use in the United States, for the authority to make that determination is vested in the administrative process.” He added, “Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule I.”

Legal counsel for the plaintiffs have yet to publicly announce whether or not they intend to appeal Judge Hellerstein’s ruling.

A judge for the Federal District Court in Sacramento considered similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them — ruling that plaintiffs failed to show that Congress acted irrationally when classifying cannabis as a schedule I controlled substance. “At some point in time, a court may decide this status to be unconstitutional,” the judge determined. “But this is not the court and not the time.”

United States District Judge Kimberly Mueller heard testimony over the course of the past five days in regard to the constitutionality of the federal statute designating marijuana as a Schedule I Controlled Substance. At issue in this evidentiary hearing is whether the scientific literature provides a rational basis for the federal classification of the plant as a substance with “a high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for use under medical supervision.

The federal government’s position was articulated in testimony provided by Dr. Bertha Madras, Professor of Psychobiology at Harvard Medical School and the former Deputy Director for Demand Reduction for the White House Office of National Drug Control Policy under President George W. Bush.

Expert witnesses for the defense who testified at the hearing were Dr. Carl Hart, Associate Professor of Psychology in the Department of Psychiatry and Psychology at Columbia University in New York City, retired physician Phillip Denny, Dr. Greg Carter, Medical Director of St. Luke’s Rehabilitation Institute in Spokane, Washington, and marijuana cultivation expert and archivist Chris Conrad.

Defense counsel for the litigants were NORML Legal Committee members Zenia Gilg of San Francisco and Heather Burke of Nevada City, CA. I assisted attorneys Gilg and Burke as a consultant in the case prior to the hearing and as their principle investigator during the hearing — a point that the federal government’s attorneys insisted on making public on Wednesday by insisting the judge recognize that: “Defense counsels’ investigator is the Deputy Director of NORML; he’s not some ordinary investigator.”

Representatives from California NORML as well as writer Jeremy Daw of TheLeafOnline were in attendance during the hearing and provide day-by-day coverage of events on their respective websites and at the links below. Dr. Madras was cross-examined both Wednesday afternoon and Thursday morning.

Of the many numerous peaceful and constitutionally-respectful means employed for decades by which cannabis law reformers have been to try to bring about about an end to Cannabis Prohibition laws, one of the most benign, yet most powerful arrows in the activist’s quiver is jury nullification–whereby jurors are educated and informed about their right to vote not guilty in cases where they morally question the underlying law itself (and not just to cast a verdict ‘for’ or ‘against’ individuals the government has charged with ‘crimes’).

Last year Dr. Heicklen was arrested in front of a federal court house in New York City for providing educational pamphlets to people passing by, including perspective jurors, that informed them of America’s long history with jury nullification (i.e. the trial of Peter Zenger during the colonial period) and that the practice is still important today in a functional democracy.

Thankfully, the charges of jury tampering against Dr. Heicklen were dismissed last week and there is now an even greater legal precedent to cite for both citizens accused of cannabis-related crimes (approximately 850,000 annually in America) and citizens asked to sit on juries to keep upholding antiquated Cannabis Prohibition laws.

To learn more about jury nullification and its likely historical importance in helping to end Cannabis Prohibition, please checkout the Fully Informed Jury Association (a.k.a. FIJA) @ fija.org

The next time the 80-year-old retired chemistry professor takes his protest to the plaza outside the federal courthouse in Manhattan, he may make it home without being locked up.

A federal judge on Thursday ordered the dismissal of an indictment against the professor, Julian P. Heicklen, who had been charged with jury tampering for advocating the controversial position known as jury nullification while outside the courthouse.

Mr. Heicklen had repeatedly stood with a “Jury Info” sign and handed out brochures supporting nullification, the view that jurors who disagree with a law may ignore their oaths and vote to acquit a defendant accused of violating it.

Prosecutors said such advocacy, “directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.”

But the judge, Kimba M. Wood of Federal District Court, wrote that a person violated the jury tampering statute only when he or she knowingly tried to influence a juror’s decision through a written communication “made in relation to a specific case pending before that juror.”

Judge Wood added that she would not “stretch the interpretation” of the statute to cover speech that was “not meant to influence” a juror’s actions in a specific case.

Mr. Heicklen expressed pleasure at the ruling. “Not just for me,” he said. “I think it’s a major decision for the country.” (more…)

George Washington University law professor and longtime jury nullification proponent Paul Butler pens a noteworthy op-ed in yesterday’s New York Times.

Notable not only because of the important subject matter vis-à-vis the first example proffered by Professor Butler, but also too because of the defendant in the case at bar cited.

Professor Julian Heicklen has been protesting Cannabis Prohibition laws since the mid 1990s, mainly around the Penn State campus where he was a longtime Chemistry professor, principally by causing a ruckus around jury nullification and protesting without permits.

Well, to his ever-loving credit, in his retirement, this 79-year-old freedom loving activist is still–through his own pain and suffering–working hard to inform the public and potential jurors that they (better said, we) all have the right to vote our conscience when in judgment of our fellow citizens in a criminal court of law.

I too join Professors Heicklen and Butler in what some prosecutors deem a ‘crime’ and that is to educate as many citizens as possible that they don’t have to keep upholding bad laws like Cannabis Prohibition by voting to punish citizens for non-violent cannabis-related criminal offenses.

American citizens when acting as jurors have the right and responsibility to “Just Say No” to enforcing the country’s failed and expensive Cannabis Prohibition laws.